The Bakke Bottleneck

Similar cases are slowed as the High Court weighs a decision

Although his parents were poorly educated immigrants who spoke only Yiddish at home, Asar Stepak, 28, worked hard to learn English, and earned a 3.5 grade average at New York University. He applied for admission to the Rutgers College of Medicine and Dentistry of New Jersey. After Rutgers turned him down, Stepak sued in both state and federal court. His charge: Rutgers was giving blacks and other minorities an unconstitutional advantage in the admissions process, a charge that the school denies.

Stepak decided to sue after learning of the case brought by Engineer Allan Bakke, whose "reverse discrimination" complaint against the medical school of the University of California at Davis is before the U.S. Supreme Court. Bakke, who is white, charges that he was unconstitutionally discriminated against when he applied for medical school, because Davis reserved 16 places in its entering class for racial-minority students. While Bakke sweats out the decision, Asar Stepak is waiting too. And his is just one of a growing number of reverse-discrimination cases that have been slowed or stalled in the lower courts as judges and contending parties await the Supreme Court's Bakke ruling, now expected before the summer recess.

No one knows whether the Supreme Court will decide the Bakke case on narrow grounds or by stating broad principles concerning programs to aid minorities. As a result no one knows the extent to which the Bakke decision will affect thousands of affirmative-action programs in business, education and government. "Everybody is holding their breath. Courts and defendants are trying to do as little as possible until they see what the Bakke decision will say," says one lawyer. Notes Joseph Rauh, a leading civil rights attorney in Washington: "I don't blame the courts. They don't want to rule one way today and be reversed by the Supreme Court next month."

Among those caught waiting for the Bakke decision is Philip F. Dileo, an Italian American raised in humble circumstances in New York's Little Italy. Dileo is seeking to require the University of Colorado Law School to reconsider his application under an expanded definition of "disadvantaged" applicants--a category that Colorado now limits to blacks, American Indians and Hispanic and Asian Americans. Dileo argues that those who are economically and culturally deprived, irrespective of race, should also be considered. A Colorado District Court upheld the university, and the matter is now on appeal before the state's supreme court.

Neither Dileo nor Stepak encountered, as Bakke did, a specific numerical quota reserving places for minorities. But quotas are a burning issue in several reverse-discrimination employment cases, arising under Title VII of the Civil Rights Act of 1964.

At a Kaiser Aluminum plant in Gramercy, La., the company and the employees' union, the United Steel workers of America, agreed that half of those admitted to a craft job-training program would be minorities; separate seniority lists for minorities and whites were drawn up to screen program applicants. A white male applicant named Brian Weber sued for admission to the program claiming he had more seniority than many of the minority members accepted. Weber won his case in a 2-to-1 decision of the Court of Appeals for the Fifth Circuit. The judges denied a petition from Kaiser for a rehearing after confidentially advising Justice Department attorneys in Washington that they wanted to wait for the Bakke decision.

Much the same thing happened to James Cramer, a sociologist at the Georgetown University Institute of Criminal Law and Procedure. Cramer was hired for a one-year teaching job at Virginia Commonwealth University in 1973 and promised that he would be considered for a permanent job. But the university, under pressure from the Department of Health, Education and Welfare, created a program designed to give hiring preference to women and minorities, and Cramer did not get the job. He sued--not to get a job, but to test the principle of exclusion by sex. Federal District Judge D. Dortch Warriner agreed with Cramer. "You've been flattened by the civil rights steamroller," he said. After an unusual appeal hearing involving all the judges on the Court of Appeals for the Fourth Circuit, the court said that it would delay its ruling pending the Bakke decision.

The preferential treatment in the Cramer, Weber and Bakke cases was not imposed by a court, but was "voluntary" (in Weber, however, the quotas were voluntary only in a special sense, since they resulted, as is frequently the case, from a need to satisfy federal rules). The Supreme Court has upheld court-imposed quotas in cases where past discrimination has been proved. But the Bakke case may help to clarify the legality of giving preference on the basis of race or sex in the absence of a court order and where there has been no judicial, administrative or legislative finding of past discrimination.

The issue has also arisen in Wyoming's Federal District Court. Wyoming's Associated General Contractors are suing the Economic Development Administration to test a U.S. law requiring that 10% of certain federal funds be set aside for minority-owned firms. Judge Ewing Kerr says that he will not reach a decision until the Bakke ruling is handed down.

In Detroit, a federal judge threw out a voluntary quota system adopted by the Detroit Police Department. Since 1974, in making promotions to the rank of sergeant, officials have skipped over some 200 white officers who had ranked higher than black officers on promotional eligibility lists, primarily on the basis of an exam. At one point, 29 new white sergeants were chosen in strict numerical rank from the top of a 298-man promotional eligibility list; then a matching group of blacks was promoted. Among the new black sergeants, the highest-ranking was 36th; the others ranged as far down the list as 264th place.

In his opinion, District Judge Fred W. Kaess called affirmative action a "vile misnomer" and "the antithesis of equal opportunity" if it simply meant proportionate job quotas without regard to past discrimination. He ruled there was no proof that police promotions and hiring had been discriminatory, and took issue with claims that the percentage of Detroit police employees who were black (17%) was less than the 44% proportion of blacks in the city's population. Applicants for police jobs, the judge pointed out, were drawn from a three-county labor market in which 18.7% of the eligible workers were black. The city of De troit is appealing the Kaess decision to the U.S. Court of Appeals in Cincinnati.

It is doubtful that any Bakke decision will have much effect in cases where judicial findings of discrimination have already been made. One example: Boston Federal Judge Frank H. Freedman's order banning hiring of white firemen until the percentage of blacks and Hispanics approximates their 23% ratio in the Boston population. Nor is there likely to be much impact on voluntary affirmative action programs that focus on equal rather than preferential treatment. Still, notes one Justice Department official, lawyers asked to help set up affirmative action programs are "telling their clients to sit tight" and wait for the Bakke decision. Said the official: "The lawyers are telling them they could be subject to reverse-discrimination suits, and they just aren't willing to take the chance."

This file is automatically generated by a robot program, so viewer discretion is required.